COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee Argued at Richmond, Virginia
JAMES DANIEL PRESSLEY MEMORANDUM OPINION * BY v. Record No. 2710-01-2 JUDGE JEAN HARRISON CLEMENTS JANUARY 21, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Cynthia E. Payne, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Donald E. Jeffrey, III, Assistant Attorney General, on brief), for appellee.
James Daniel Pressley was convicted on his conditional plea
of guilty of possession of cocaine with intent to distribute, in
violation of Code § 18.2-248. On appeal, he contends the trial
court erred in denying his motion to suppress the cocaine found in
his pants by the police as the product of a warrantless pat-down
search and seizure that violated his Fourth Amendment rights.
Finding no error, we affirm the judgment of the trial court.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
"In reviewing a trial court's denial of a motion to suppress,
'[t]he burden is upon [the defendant] to show that th[e] ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en
banc) (alterations in original) (quoting Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "'Ultimate questions
of reasonable suspicion and probable cause to make a warrantless
search' involve questions of both law and fact and are reviewed de
novo on appeal." Id. (quoting Ornelas v. United States, 517 U.S.
690, 691 (1996)). However, "we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them and we give due weight to the inferences
drawn from those facts by resident judges and local law
enforcement officers." Id. at 198, 487 S.E.2d at 261 (citing
Ornelas, 517 U.S. at 699).
On appeal, Pressley asserts he was "seized" when several
uniformed police officers surrounded him on a street corner and
Officer Ryan Hickson began to conduct a pat-down search of his
person. That seizure, Pressley contends, was unlawful because
Hickson did not have grounds to support a reasonable suspicion of
criminal activity before conducting the search. Hickson's
- 2 - observation of Pressley shoving something inside the back of his
pants, where Hickson then observed a large bulge, amounted to
nothing more than a hunch that the bulge may have been drugs or a
weapon, Pressley maintains. Thus, Pressley concludes, the
pat-down search by Hickson violated his Fourth Amendment rights
and the trial court erred in refusing to suppress the cocaine, a
product of the unlawful warrantless seizure and search.
Under well-established Fourth Amendment principles, "[t]he
police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity 'may be afoot.'" United
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)). "Actual proof that criminal activity is
afoot is not necessary; the record need only show that it may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d
77, 79 (1992). However, the police's "justification for stopping
appellant . . . must have been based upon more than an 'inchoate
and unparticularized suspicion or "hunch."'" Harris v.
Commonwealth, 33 Va. App. 325, 333, 533 S.E.2d 18, 21 (2000)
(quoting Terry, 392 U.S. at 27), rev'd on other grounds, 262 Va.
407, 551 S.E.2d 606 (2001).
In addition, "[t]here are no bright line rules to follow when
determining whether a reasonable and articulable suspicion exists
to justify an investigatory stop." Hoye v. Commonwealth, 18
Va. App. 132, 135, 442 S.E.2d 404, 406 (1994). Indeed, as the
- 3 - Supreme Court stated in Illinois v. Wardlow, 528 U.S. 119, 124-25
(2000):
In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.
In making that determination, "the courts must consider 'the
totality of the circumstances—the whole picture.'" Hoye, 18
Va. App. at 135, 442 S.E.2d at 406 (quoting Sokolow, 490 U.S. at
8).
Furthermore, "[a]lthough the authority to conduct a pat-down
search does not follow automatically from the authority to effect
an investigative stop, 'where the officer can "point to particular
facts from which he reasonably inferred that the individual was
armed and dangerous[,]" [he is] justified in searching for
weapons.'" Harris, 33 Va. App. at 334, 533 S.E.2d at 22
(lattermost alteration in original) (quoting Williams v.
Commonwealth, 4 Va. App. 53, 66-67, 354 S.E.2d 79, 86 (1987)
(quoting Sibron v. New York, 392 U.S. 40, 64 (1968))).
"Reasonableness is judged from the perspective of a reasonable
officer on the scene allowing for the need of split-second
decisions and without regard to the officer's intent or
motivation." Scott v. Commonwealth, 20 Va. App. 725, 727, 460
- 4 - S.E.2d 610, 612 (1995). "The officer is also entitled 'to view
the circumstances confronting him in light of his training and
experience, and he may consider any suspicious conduct of the
suspected person.'" Andrews v. Commonwealth, 37 Va. App. 479,
491, 559 S.E.2d 401, 407 (2002) (quoting James v. Commonwealth, 22
Va. App. 740, 745, 473 S.E.2d 90, 92 (1996) (citation omitted));
see also Christian v. Commonwealth, 33 Va. App. 704, 714, 536
S.E.2d 477, 482 (2000) (en banc) (noting that "the unique
perspective of a police officer trained and experienced in the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee Argued at Richmond, Virginia
JAMES DANIEL PRESSLEY MEMORANDUM OPINION * BY v. Record No. 2710-01-2 JUDGE JEAN HARRISON CLEMENTS JANUARY 21, 2003 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Cynthia E. Payne, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Donald E. Jeffrey, III, Assistant Attorney General, on brief), for appellee.
James Daniel Pressley was convicted on his conditional plea
of guilty of possession of cocaine with intent to distribute, in
violation of Code § 18.2-248. On appeal, he contends the trial
court erred in denying his motion to suppress the cocaine found in
his pants by the police as the product of a warrantless pat-down
search and seizure that violated his Fourth Amendment rights.
Finding no error, we affirm the judgment of the trial court.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
"In reviewing a trial court's denial of a motion to suppress,
'[t]he burden is upon [the defendant] to show that th[e] ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en
banc) (alterations in original) (quoting Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). "'Ultimate questions
of reasonable suspicion and probable cause to make a warrantless
search' involve questions of both law and fact and are reviewed de
novo on appeal." Id. (quoting Ornelas v. United States, 517 U.S.
690, 691 (1996)). However, "we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them and we give due weight to the inferences
drawn from those facts by resident judges and local law
enforcement officers." Id. at 198, 487 S.E.2d at 261 (citing
Ornelas, 517 U.S. at 699).
On appeal, Pressley asserts he was "seized" when several
uniformed police officers surrounded him on a street corner and
Officer Ryan Hickson began to conduct a pat-down search of his
person. That seizure, Pressley contends, was unlawful because
Hickson did not have grounds to support a reasonable suspicion of
criminal activity before conducting the search. Hickson's
- 2 - observation of Pressley shoving something inside the back of his
pants, where Hickson then observed a large bulge, amounted to
nothing more than a hunch that the bulge may have been drugs or a
weapon, Pressley maintains. Thus, Pressley concludes, the
pat-down search by Hickson violated his Fourth Amendment rights
and the trial court erred in refusing to suppress the cocaine, a
product of the unlawful warrantless seizure and search.
Under well-established Fourth Amendment principles, "[t]he
police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity 'may be afoot.'" United
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio,
392 U.S. 1, 30 (1968)). "Actual proof that criminal activity is
afoot is not necessary; the record need only show that it may be
afoot." Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d
77, 79 (1992). However, the police's "justification for stopping
appellant . . . must have been based upon more than an 'inchoate
and unparticularized suspicion or "hunch."'" Harris v.
Commonwealth, 33 Va. App. 325, 333, 533 S.E.2d 18, 21 (2000)
(quoting Terry, 392 U.S. at 27), rev'd on other grounds, 262 Va.
407, 551 S.E.2d 606 (2001).
In addition, "[t]here are no bright line rules to follow when
determining whether a reasonable and articulable suspicion exists
to justify an investigatory stop." Hoye v. Commonwealth, 18
Va. App. 132, 135, 442 S.E.2d 404, 406 (1994). Indeed, as the
- 3 - Supreme Court stated in Illinois v. Wardlow, 528 U.S. 119, 124-25
(2000):
In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.
In making that determination, "the courts must consider 'the
totality of the circumstances—the whole picture.'" Hoye, 18
Va. App. at 135, 442 S.E.2d at 406 (quoting Sokolow, 490 U.S. at
8).
Furthermore, "[a]lthough the authority to conduct a pat-down
search does not follow automatically from the authority to effect
an investigative stop, 'where the officer can "point to particular
facts from which he reasonably inferred that the individual was
armed and dangerous[,]" [he is] justified in searching for
weapons.'" Harris, 33 Va. App. at 334, 533 S.E.2d at 22
(lattermost alteration in original) (quoting Williams v.
Commonwealth, 4 Va. App. 53, 66-67, 354 S.E.2d 79, 86 (1987)
(quoting Sibron v. New York, 392 U.S. 40, 64 (1968))).
"Reasonableness is judged from the perspective of a reasonable
officer on the scene allowing for the need of split-second
decisions and without regard to the officer's intent or
motivation." Scott v. Commonwealth, 20 Va. App. 725, 727, 460
- 4 - S.E.2d 610, 612 (1995). "The officer is also entitled 'to view
the circumstances confronting him in light of his training and
experience, and he may consider any suspicious conduct of the
suspected person.'" Andrews v. Commonwealth, 37 Va. App. 479,
491, 559 S.E.2d 401, 407 (2002) (quoting James v. Commonwealth, 22
Va. App. 740, 745, 473 S.E.2d 90, 92 (1996) (citation omitted));
see also Christian v. Commonwealth, 33 Va. App. 704, 714, 536
S.E.2d 477, 482 (2000) (en banc) (noting that "the unique
perspective of a police officer trained and experienced in the
detection of crime" is a relevant factor in judging the
reasonableness of police conduct).
Additionally, "the officer does not have to be absolutely
certain that the individual might be armed. If he reasonably
believes that the individual might be armed, the search is
warranted to protect himself or others who may be in danger."
Simmons v. Commonwealth, 217 Va. 552, 556, 231 S.E.2d 218, 221
(1977).
Here, the evidence, in the light most favorable to the
Commonwealth, established that, on the afternoon of May 31, 2001,
Officer Hickson was a passenger in one of a group of four police
vehicles patrolling the Clopton and Wise area, a high drug and
crime area south of the James River in the City of Richmond.
Officer Degraw was driving the marked police vehicle, and Officer
Durham was seated behind Hickson. Officers Bender and Hatchett
were in an unmarked vehicle in front of Hickson's vehicle, and two
- 5 - other police vehicles were behind it. All of the officers
involved were in uniform displaying their badges of authority.
At 4:45 p.m., Hickson observed Pressley and two other
individuals standing at the corner of Wise and Clopton Streets.
Officers Bender and Hatchett stopped their vehicle on Clopton
Street in front of Pressley. Hickson, Degraw, and Durham stopped
on Wise Street approximately fifteen to twenty feet behind
Pressley. Bender and Hatchett got out of their vehicle and began
talking to the three individuals. As the two officers approached
the three individuals, Hickson observed that Pressley "had
something in his left hand" and saw him "shove" it into "the back
of his pants." Hickson testified that, although he was unable to
immediately identify the object Pressley put down his pants, he
definitely saw Pressley's "cupped" left hand, which "appeared to
have something in it," move in a "very, very deliberate motion"
down inside the back of his pants. Hickson further observed that,
when Pressley pulled his hand back out of his pants, it was
"empty." Hickson then saw Pressley "immediately" use "both hands
to pull his pants up and then his shirt down over [the object]."
Having both observed the same motions by Pressley, Degraw and
Durham said, "watch his hands." Believing they had just seen
Pressley try to hide a "stash" of drugs in his pants, Hickson and
Degraw got out of their vehicle and approached Pressley.
As he approached Pressley, Hickson observed that "there was a
bulge in the back of [Pressley's] pants" where Pressley had just
- 6 - put his left hand. Noting that the bulge was "rather large,"
"about the size of [his] palm, maybe a little bit larger," Hickson
became concerned that the bulge might be a weapon that Pressley
had placed in his pants. Hickson asked Pressley "what he had just
put down his pants." Pressley's only response was "what."
Hickson, who had made many drug arrests and recovered weapons
in the area previously, knew there was always "a possibility of
firearms" whenever drugs were involved. Therefore, for his safety
and the safety of the other officers and people around, Hickson
put his hand to the back area of Pressley's pants where Hickson
saw the bulge and did a protective pat-down with the palm of his
hand. Hickson testified that, upon feeling the object, he
immediately knew it was narcotics because he felt a soft, crunchy
plastic with a harder material inside.
At that point, Pressley became agitated and tried to put his
hands in his pants. Hickson then handcuffed Pressley and searched
him. Upon lifting Pressley's shirt, Hickson saw that Pressley had
a pair of boxer shorts over which he had two pairs of shorts. In
between the two layers of shorts, Hickson retrieved a baggy
containing seventy-six plastic baggy corners of an off-white rock
material that subsequently proved to be crack cocaine.
Based on the totality of these circumstances, we conclude
that Officer Hickson had reasonable cause to believe that Pressley
was unlawfully in possession of illegal drugs or a concealed
weapon and that the limited pat-down search for weapons was
- 7 - warranted to protect Hickson and others who might be in danger.
Hickson observed Pressley, who was standing on a street corner
with two other individuals in a high drug and crime area,
furtively conceal an object in the back of his pants when
approached by two uniformed police officers. Hickson, who had
made numerous drug arrests in the area, testified he first
believed Pressley had put illegal drugs down his pants but, upon
approaching Pressley to inquire further, became concerned that, in
light of the size of the bulge it caused, the object was a weapon.
Based on Pressley's suspicious conduct and his noncommittal answer
to Hickson's inquiry asking what Pressley had just put down his
pants, Hickson who, based on his knowledge and experience that
guns were often involved with drugs in the area, reasonably
inferred that the object in Pressley's pants was a weapon. See
Brown v. Commonwealth, 15 Va. App. 232, 234 n.1, 421 S.E.2d 911,
912 n.1 (1992) (recognizing that "presence in a high crime area"
is a factor that may be considered in assessing whether an
investigatory stop is justified); Logan v. Commonwealth, 19
Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc) (noting
that "[t]he relationship between the distribution of controlled
substances . . . and the possession and use of dangerous weapons
is now well recognized").
We conclude, therefore, that because the circumstances
provided Hickson an objective basis for suspecting Pressley was
engaged in criminal activity and that he was armed and dangerous,
- 8 - Hickson's limited pat-down search of Pressley for weapons was not
in violation of Pressley's Fourth Amendment rights. 1 Hence, the
trial court did not err in denying Pressley's motion to suppress.
Accordingly, we affirm Pressley's conviction.
Affirmed.
1 Because we find that Officer Hickson had a reasonable, articulable suspicion that Pressley was in possession of illegal drugs and was armed and dangerous, we do not address the Commonwealth's argument that the officers had probable cause to arrest Pressley and search him incident to arrest.
- 9 -